FL Supreme Court Filing With 2018 10 16

Filing # 71009526 E-Filed 04/20/2018 11:29:00 AM
IN THE SUPREME COURT OF FLORIDA

CASE NO.:
THIRD DCA CASE NO.: 3D16-2228
LOWER CASE NO.: 14-019290-CA
__________________________________________________________________
RECEIVED, 04/20/2018 11:33:41 AM, Clerk, Supreme Court
DANIEL H. ALEXANDER AND JACQUELINE P. ALEXANDER
Petitioners,
vs.
BAYVIEW LOAN SERVICING, LLC
Respondent.
_________________________________________________________________
APPENDIX TO PETITION FOR WRIT OF MANDAMUS

PART I
__________________________________________________________________
Respectfully submitted,
JACOBS KEELEY, PLLC

ATTORNEY FOR APPELLANT
ALFRED I. DUPONT BUILDING
169 EAST FLAGLER STREET, SUITE 1620
MIAMI, FLORIDA 33131
TEL (305) 358-7991
FAX (305) 358-7992
SERVICE EMAIL: EFILE@JAKELEGAL.COM
BY: /S/ BRUCE JACOBS

BRUCE JACOBS
FLORIDA BAR NO. 116203
APPENDIX
Appendix A Motion, Order, and Opinion in Daniel Alexander and Jacqueline

P. Alexander v. Bayview Loan Servicing, Llc Third DCA Case No.
3D16-2228 .....................................................................................4
Appendix B Daily Business Review Article: Can He Say That? Frustrated

Attorney Asks ‘what’s wrong with the Third DCA .................... 5-6
Appendix C Motion for Rehearing, for Rehearing En Banc, and requested a

written opinion and Order in Daniel Alexander and Jacqueline P.
Alexander v. Bayview Loan Servicing, Llc Third DCA Case No.
3D16-2228 .............................................................................. 8-39
JACOBS KEELEY, PLLC

TEL (305) 358-7991
FAX (305) 358-7992

BRUCE JACOBS
COURT E. KEELEY
AMIDA U. FREY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was emailed to
jonathan.blackmore@phelanhallinan.com, fl.service@phelanhallinan.com;
Jonathan Lee Blackmore, Esq., Phelan Hallinan, PLC, 2727 W Cypress Creek Rd,
Ft Lauderdale, FL 33309-1721 this 20th day of April, 2018.
/S/ BRUCE JACOBS

BRUCE JACOBS
Third District Court of Appeal
State of Florida
Opinion filed January 24, 2018.

Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-2228
Lower Tribunal No. 14-19290
________________
Daniel H. Alexander and Jacqueline P. Alexander,

Appellants,
vs.
Bayview Loan Servicing, LLC,

Appellee.
An Appeal from the Circuit Court for Miami-Dade County, John W.

Thornton, Jr., Judge.
Jacobs Keeley, PLLC, and Bruce Jacobs, Court E. Keeley, Amida U. Frey,
and Anna C. Morales, for appellants.
Phelan Hallinan Diamond & Jones, PLLC, and Jonathan L. Blackmore (Fort
Lauderdale), for appellee.
Before SUAREZ, LAGOA, and SALTER, JJ.
PER CURIAM.
Affirmed.
Can He Say That? Frustrated Attorney Asks, 'What's Wrong With the Third DCA?' | Daily Business Review 4/2/18, 11(41 PM
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Miami, FL: This Unbelievable, Tiny Company Is

Disrupting A $200 Billion Industry
Can He Say That? Frustrated Attorney Asks,

'What's Wrong With the Third DCA?'
"Sometimes things just need to be said," attorney Evan M. Rosen told the Daily Business Review.
By Samantha Joseph (/dailybusinessreview/author/profile/Samantha Joseph/) | February 09, 2018 at 03:28 PM
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Evan M. Rosen. Photo: J. Albert Diaz
Fort Lauderdale attorney Evan M. Rosen is criticizing a state appellate court — via
news release — in a move that seems to flirt with breaking Florida Bar rules against BeenVerified
impugning the integrity of judges.
Frustrated over the adjudication of foreclosure cases, Rosen issued a news release
(https://images.law.com/contrib/content/uploads/documents/392/12858/2018-
02-09-What-is-Wrong-with-the-Third-DCA-Press-Release.pdf) Thursday asking,
“What’s wrong with Florida’s Third District Court of Appeal?”
https://www.law.com/dailybusinessreview/sites/dailybusinessreview/20…torney-asks-whats-wrong-with-the-third-dca/?slreturn=20180302233938 Page 1 of 6
“Sometimes things just need to be said,” Rosen told the Daily Business Review. “This
is a story that needs to be told.”
Rosen, a Florida attorney since 1997, issued a 15-page document complete with a
statistical analysis of foreclosure opinions from Florida’s five district courts of appeal.
It shows Miami’s Third DCA outpaces its counterparts in ruling against homeowners
sued by their lenders.
He said he’s spent years compiling appellate rulings from across Florida to create a
database of foreclosure-related dispositions from 2010 through Thursday.
Trending Stories
1 Microsoft Names First EU
Data Protection O fficer Under
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(/corpcounsel/2018/03/26/microsoft-
names-first-eu-data-
protection-officer-under-gdpr/)
“Statistics reveal what experienced Florida foreclosure attorneys already know,” CORPORATE COUNSEL
(/CORPCOUNSEL/)
Rosen wrote. “The Third District Court of Appeal has an issue properly adjudicating
foreclosure cases.” 2 McDermott Touts $100M Haul
as Raid on DLA Piper Grows
Defense attorneys for homeowners have long whispered about what they see as (/americanlawyer/2018/03/30/mcdermott-
touts-100m-haul-as-raid-on-
bias among Third DCA jurists against homeowners in foreclosure, but Rosen is the dla-piper-grows/)
first to call public attention to the Miami court as an outlier in foreclosure appeals. THE AMERICAN LAWYER
(/AMERICANLAWYER/)
Ethics lawyers cited concerns about potential repercussions in appearances before
3 Quinn Emanuel Partner
the court in declining to speak on the record about Rosen’s criticisms. Suffers From Depression and
He Wants Everyone to Know
“He’s onto something,” said an attorney who requested anonymity because of (/newyorklawjournal/2018/03/28/quinn-
pending cases before the Third DCA. “There is no question that the Third District is emanuel-partner-suffers-from-
depression-and-he-wants-
pro-business and couldn’t care less about homeowners. The problem is yes, you everyone-to-know/)
have ethics rules, but you also have First Amendment rights. This area of the law is NEW YORK LAW JOURNAL
(/NEWYORKLAWJOURNAL/)
the grayest. Lawyers want to make a living and not anger the judiciary. Most lawyers
hold their tongue … so it’s a lot of self-regulation.” 4 RIP, Law Schools. A Look at
Closed Campuses
Last year, Davie attorney Michael Wrubel (/2018/03/26/rip-law-schools-
a-look-a-closed-campuses/)
(http://www.wrubellaw.com/attorney_profile/index.html) performed a numeric
LAW.COM (HTTPS://WWW.LAW.COM/)
tally that bolstered criticism by defense lawyers
(https://www.law.com/dailybusinessreview/almID/1202752360518/defense- 5 Texas Attorney Files $100
Million Lawsuit Against Critic,
questions-courts-silence-on-standing-in-foreclosure-cases/), who claimed the Ethics Grievant
court abuses per curiam affirmances, or PCAs, to avoid explaining their rulings on (/texaslawyer/2018/04/02/texas-
attorney-files-100-million-
lender standing. He found the appellate court, which hears appeals from Miami- lawsuit-against-critic-who-
Dade and Monroe counties, issued PCAs in about 81 percent of the foreclosure cases called-him-a-nazi/)
heard in 2015. TEXAS LAWYER (/TEXASLAWYER/)
PCAs affirm trial court orders when the legal issues are so well-settled that a fresh
discussion would be fruitless. But some attorneys say the Third DCA misuses the tool
to strategically sidestep writing opinions that could provide grounds for rehearing.
Instead, they say it uses the decisions to wipe out options for further review and
avoid conflicts with other district courts.
Rosen said his data compelled him to speak. He said his chart tabulates every Florida
appellate opinion since 2010 when the first wave of appeals from the housing
collapse hit court dockets. Most cases focuses on legal standing — centered on
questions about a lender’s entitlement to bring suit — over the course of the
foreclosure crisis.
He found that of 120 opinions addressing lender standing before the Fourth DCA,
the only other South Florida court that ruled for homeowners 73 percent of the time.
On the same issue, the Second DCA found for homeowners 84 percent of the time,
the First DCA 83 percent and the Fifth DCA 72 percent.
The Third DCA ruled for homeowners twice, or only 13 percent of its foreclosure
cases involving legal standing, according to Rosen’s count.
Some lawyers question the reliance on data to challenge the appellate court’s
rulings.
One unlikely defender is outspoken foreclosure defense attorney Thomas Ice

(http://www.icelegal.com/attorneys/) of Ice legal in Royal Palm Beach. By his
count, the Fourth DCA issued PCAs in about three-quarters of its foreclosure cases
regardless of whether standing was the central issue. That puts its PCA rate near the
Third’s, but its heavier caseload translates to a higher volume of opinions, leading
observers to falsely conclude the Fourth is more borrower-friendly, Ice said.
“If you compare them based on the number of cases, it’s about the same,” he said.
The Third DCA did not respond to inquiries for comment.
On the ethics front, legal precedent from the Florida Supreme Court clarifies that
Rule 4-8.2 governs discipline for lawyers who level “false” or “reckless” criticism at the
judiciary and other court officials.
“The standard to be applied is whether the attorney had an objectively reasonable

factual basis for making the statements,” justices stated in a 2001 disciplinary case
before the high court.
Rosen isn’t worried even though he has a pending case before the Third DCA and is
involved in multiple Miami-Dade Circuit Court foreclosure suits.
“The truth is an absolute defense. This is still the United States of America. Freedom
of speech is still sacrosanct,” he said. “Who better to know what is going on with the
courts than the lawyers that appear before them regularly? I’m convinced there’s
something that’s different there than every place else, which leads to these results.
And something needed to be said.”
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Samantha Joseph
IN THE THIRD DISTRICT COURT OF APPEAL
STATE OF FLORIDA
DANIEL H. ALEXANDER AND CASE No. 3D16-2228

JACQUELINE P. ALEXANDER,
LT No. 14-019290-CA
Appellant,
vs.
BAYVIEW LOAN SERVICING, LLC,
Appellee.
_____________________________/
APPELLANTS’ MOTION FOR REHEARING, FOR REHEARING

EN BANC, AND REQUEST FOR A WRITTEN OPINION
Daniel H. Alexander and Jacqueline P. Alexander, (“Appellants”), pursuant
to Fla. R. App. P. 9.330 and 9.331 file this Motion for an order (i) granting rehearing,
(ii) granting re-hearing En Banc, or (iii) for a written opinion and state:
Respectfully, this Honorable Court should not have cancelled oral argument
and resolved this appeal by PCA without a written opinion. Such a result does not
comport with the notion of due process guaranteed by the Florida and United States
Constitutions. There are colorable claims of misconduct alleged herein which are
well documented, and more judges are speaking out about it.
I. There is a Colorable Claim of Fraud to Warrant a Written Opinion

that Instructs the Trial Court to Permit Discovery and Conduct an
Evidentiary Hearing on Appellant’s Rule 1.540(b) Motion
There is a clear right to discovery and an evidentiary hearing to establish that
years after Washington Mutual (“WAMU”) ceased to legally exist, JP Morgan Chase
(“Chase”) engaged teams of robo-stampers to affix the dead bank’s endorsement
onto original notes. Here, the same Cynthia Riley “dead bank robo-stamped”
endorsement found on the original promissory note in this case, is found on
thousands of notes originated by WAMU and Chase.
Moreover, the assignment of mortgage, assigning only the mortgage and not
the note, is evidence fabricated to record in the public records and present in support
of standing that is a legal nullity under both Federal and Florida law common law.
Carpenter v. Longan, 83 U.S. 271, 274 (1872)(“[a]n assignment of the note carries
the mortgage with it, while an assignment of the latter alone is a nullity”); Carter v.
Bennett, 4 Fla. 283, 347 (1852)(superceded by statute on other grounds)(“the
assignment of the interest of the mortgage in the land without an assignment of the
debt is considered to be without meaning or use….”).
On December 13, 2017, the Honorable Senior Judge Howard Harrison entered
a final judgment in favor of a homeowner defended by Appellant’s counsel finding
unclean hands because of, inter alia, an identical Cynthia Riley dead bank
robostamped endorsement which barred the equitable relief of foreclosure in Wells
Fargo v. Riley, under Palm Beach County Circuit Court Case Number 50-2016-CA-
010759-XXXX-MB. See attached as Appendix A.
Wells Fargo acted as Trustee of a securitized trust and Chase acted as the
servicer in the trial where Judge Harrison shamed them for presenting false evidence,
JACOBS KEELEY, PLLC 169 EAST FLAGLER STREET, SUITE 1620, MIAMI, FL 33131 TEL: 305•358•7991 FAX: 305•358•7992
false testimony, and violating a court order that would have exposed the
unconscionable scheme to rely on a dead bank robostamped Cynthia Riley
endorsement and false mortgage assignment to establish standing.
In finding unclean hands throughout the case, Judge Harrison cited the
common law rule that “[o]ne who comes into equity must come with clean hands
else all relief will be denied him regardless of merit of his claim, and it is not
essential that act be a crime; it is enough that it be condemned by honest and
reasonable men.” Roberts v. Roberts, 84 So.2d 717 (Fla. 1956)(emphasis added).
Judge Harrison explained “even if Plaintiff had standing to foreclose (a
meritorious claim), Plaintiff would be denied the equitable relief of foreclosure upon
a finding that Plaintiff took actions in pursuing this foreclosure that reasonable and
honest men would condemn.”
Judge Harrison found the Florida Supreme Court noted “the principle or
policy of the law in withholding relief from a complainant because of ‘unclean
hands’ is punitive in its nature.” Busch v. Baker, 83 So. 704 (Fla. 1920). As U. S.
Supreme Court Justice Black wrote:
“[T]ampering with the administration of justice in the manner

indisputably shown here involves far more than an injury to a single
litigant. It is a wrong against the institutions set up to protect and
safeguard the public, institutions in which fraud cannot complacently
be tolerated consistently with the good order of society.” Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64 S. Ct. 997, 88
L. Ed. 1250 (1944).
Chase employed agents to affix the dead bank endorsement knowing WAMU
had ceased to exist and Cynthia Riley lacked authority to endorse notes. Appellee
should not be allowed to force a judicial sale of Mr. Alexander’s home using false
evidence. Appellant should be allowed to present evidence and be heard on these
allegations of misconduct. Respectfully, it is a departure from the essential elements
of law to resolve these allegations of misconduct by a PCA.
Appellant’s colorable claim is that senior executives of Chase suborned
perjury to backdate dead bank robostamped endorsements to claim it was affixed
within days of origination, when WAMU still existed. This misconduct continued
in earnest after the Florida Attorney General’s PowerPoint presentation entitled
“Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases” detailed
widespread fraud on the court involving robo-signed mortgage assignments. See
attached as Appendix B.
Once the robo-signing scandal broke, and the Office of the Comptroller of the
Currency issued a Consent Judgment against JP Morgan Chase, Wells Fargo, Bank
of America, and others after finding they had all “litigated cases without properly
endorsed notes” in March of 2011. (“The 2011 OCC Consent Judgment). See
attached as Appendix C.
Every Florida appellate court, with the exception of this Court has reversed
foreclosures obtained where the bank filed a complaint alleging a lost note count and
attaching an unendorsed copy of the note, and later produced an endorsed note. The
systemic fraud upon the court resulted in dozens of appellate decisions1 reversing
foreclosures without proof the endorsements were affixed before the litigation,
1
See, Tilus v. AS Michai LLC, 161 So.3d 1284, (Fla. 4th DCA 2015)(Trial judgment reversed because undated
blank endorsement on original note filed after complaint is insufficient to prove standing); Lloyd v. Bank of New
York Mellon, 160 So.3d 513 (Fla. 4th DCA 2015)(Trial judgment reversed without evidence endorsement occurred
before filing the complaint through additional evidence); Farkas v. U.S. Bank, --- So.3d ----, 2015 WL 3396644
(Fla. 4th DCA 2015)(witness only proved standing at trial not at inception of case when complaint lacked any
endorsements); Jelic v. LaSalle Bank, Nat. Ass'n, 160 So.3d 127 (Fla. 4th DCA 2015)(Trial reversed because no
evidence showed when special endorsement was affixed to note, which was in favor of different bank); Matthews v.
Federal Nat. Mortg. Ass'n, 160 So.3d 131 (Fla. 4th DCA 2015)(Trial judgment reversed where endorsed original
note filed months after complaint with undated endorsement and backdate mortgage assignment); Wright v.
Deutsche Bank Nat. Trust Co., 152 So.3d 1289 (Fla. 4th DCA 2015)(Trial judgment reversed when undated
endorsed note introduced at trial after complaint attached unendorsed note); Deutsche Bank Nat. Trust Co. v.
Boglioli, 154 So.3d 494 (Fla. 4th DCA 2015)(Affirmed Final Judgment in favor of Borrower when witness could
not testify when note was endorsed); Joseph v. BAC Home Loans Servicing, LP, 155 So.3d 444 (Fla. 4th DCA
2015)(Trial judgment reversed where no evidence note endorsed at time of filing complaint); LaFrance v. U.S. Bank
Nat. Ass’n, 141 So.3d 754 (Fla. 4th DCA 2014)(Summary judgment reversed where complaint attached unendorsed
note and trial evidence included undated endorsed note filed 3 ½ years later); Bristol v. Wells Fargo Bank, Nat.
Ass’n, 137 So.3d 1130 (Fla. 4th DCA 2014)(Summary judgment reversed where complaint attached unendorsed
note and trial evidence included undated endorsed note filed 2 years later); Zimmerman v. JPMorgan Chase Bank
No. 134 So.3d 501 (Fla. 4th DCA 2012)(Summary judgment reversed where complaint contained unendorsed note
and original note filed months after complaint had undated endorsement without further evidence); McLean v.
JPMorgan Chase Bank, 79 So. 3d 170 (Fla. 4th DCA 2012)(Summary judgment reversed in lost note count case
where original note later produced with undated special endorsement); Vidal v. Liquidation Properties, Inc., 104 So.
3d 1274 (Fla. 4th DCA 2013)(Summary judgment reversed in lost note case where original note filed months after
complaint with undated endorsement and backdated mortgage assignment); Wells Fargo Bank NA, v. Bohatka, 112
So. 3d 596 (Fla. 1st DCA 2013)(reversing dismissal with prejudice finding dismissal without prejudice appropriate
where trial court found allonge never affixed to note and made formal complaint to the Florida Attorney General);
Focht v. Wells Fargo Bank 124 So. 3d 308 (Fla. 2d DCA 2013)(Summary judgment reversed in lost note case where
endorsed original note filed months after complaint with undated endorsement and backdate mortgage assignment);
Feltus v. U.S. Bank, 80 So. 3d 375 (Fla. 2d DCA 2012)(Summary Judgment reversed when Bank filed lost note
count and attached unendorsed note and never amended its complaint to present original note with endorsements);
Gonzales v. Deutsche Bank National Trust Company, 95 So. 3d 251 (Fla. 2d DCA 2012)(Summary judgment
reversed when undated blank endorsement filed with original note ten weeks after filing case); Zervas v. Wells
Fargo Bank, N.A, 93 So. 3d 453 (Fla. 2d DCA 2012)(Summary judgment reversed in lost note case where original
note filed months after complaint); Cutler v. U.S. Bank, 109 So. 3d 224 (Fla. 2d DCA 2012)(Summary judgment
reversed in lost note case where original note with undated endorsement filed months after complaint); BAC
Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010)(reversed summary judgment in lost
note count case where unendorsed note filed during case); Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2nd
DCA 2010)(reversed summary judgment where original note produced after filing lost note count case with
endorsement not payable to Bank of New York); Gorel v. Bank of New York Mellon, --- So.3d ----, 2015 WL
2129505 (Fla. 5th DCA 2015)(Trial judgment reversed when undated specific endorsement to third party not
attached to the complaint); Gee v. U.S. Bank, N.A, 72 So. 3d 211 (Fla. 5th DCA 2011)(Summary judgment reversed
when complaint alleged lost note count and no facts supporting reestablishment claim in record); Green v. JP
Morgan Chase Bank, NA. 109 So. 3d 1285 (Fla 5th DCA 2013)(reversed summary judgment when undated blank
endorsement on note filed one year into case).
which in fact they were not. The unconscionable scheme calculated to interfere with
the court’s ability to fairly adjudicate foreclosures caused a tremendous strain on
judicial resources of the Florida Courts, and undoubtedly, resulted in homeowners
that continued to lose their homes based on false, incompetent evidence.
Federal and state court judges have spoken out and written opinions
documenting this attack on the integrity of the courts for years. Most recently, Judge
Butchko and Judge Harrison both made a finding of unclean hands based on the
same general misconduct. Judge Butchko also found misconduct that constituted
unclean hands after HSBC and Ocwen presented false testimony, false evidence and
violated a court order to produce discovery. See attached as Appendix D. Appellee
has continuously engaged in unclean hands since this foreclosure crisis began.
Judge Harrison joins Judge Butchko and a growing list of judges who refuse
to tolerate banks that use false evidence, present false testimony, and violate court
orders. Reasonable people would condemn such practices, which is the standard for
unclean hands, and an ultimate defense to foreclosure.
In Forward Air Sols, Inc., this Honorable Court held that under an abuse of
discretion standard: “The issue however is not whether any member of this panel
would impose the same sanction given the facts of this case. The ultimate question
is whether reasonable minds could differ as to the propriety of imposing this
sanction.” Cal v. Forward Air Sols., Inc., No. 3D15-2800, 2016 WL 3918721, at *2
(Fla. 3rd DCA 2016), citing Bass v. City of Pembroke Pines, 991 So.2d 1008, 1011
(Fla. 4th DCA 2008).
This Honorable Court recently reversed Judge Butchko’s ruling finding she
abused her discretion in finding unclean hands without addressing Judge Harrison’s
order in Riley which also found unclean hands for presenting false evidence, false
testimony and violating the Court’s discovery order.
This Court has repeatedly issued a PCA after cancelling oral argument rather
than enforce the well-established doctrine of unclean hands. The question is not
whether a valid claim exists, but rather whether reasonable people would condemn
the conduct in prosecuting that valid claim. There is no well settled law on the point
that could justify a PCA after cancelling oral argument.
Respectfully, neither Judge Butchko nor Judge Harrison could have abused
their discretion by finding unclean hands because both reached the same conclusion,
meaning reasonable minds could agree. Moreover, there is a growing list of judges
who have addressed these arguments and reached the same conclusion as Judge
Butchko and Judge Harrison. The question to each individual judge is whether they
will remain intellectually honest to the law or whether they will ignore the truth to
preserve a foreclosure system built on false evidence, false testimony, and false legal
arguments. The emperor has no clothes. The truth must be told.
The misconduct raised herein is very similar to the finding by the Honorable
U.S. District Court Judge Ursula Ungaro who upheld a False Claims Act claims
finding that “[u]sing rubber-stamped endorsements on promissory notes or relying
on MERS transfers to foreclose on properties or obtain orders of sales falls within
the scope of actions barred by the Consent Judgment Servicing Standards….” U.S.
ex rel. Bruce Jacobs v. Bank of America Corp., et. al., U.S. Dist. Ct. Case No. 1:15-
cv-24585-UU at pgs 19-20. See attached as Appendix E.
This is also similar to the findings by U.S. Bankruptcy Judge Robert N. Drain
who wrote an extensive ruling finding Wells Fargo was “improving its own position
by creating new documents and indorsements from third parties to itself to ensure
that it could enforce its claims.” In re: Cythia Carssow-Franklin Case Number 15-
CV-1701 (KMK). See attached as Appendix F.
In Franklin, Judge Drain applied the same law found in Fla. Stat. §673.3081,
noting Wells Fargo systematically created “after-the-fact” documentation “on behalf
of third parties” by in-house “assignment and indorsement teams” which Wells
Fargo tried to cover-up with an invalid assignment by Mortgage Electronic
Registration System, Inc (“MERS”).
Judge Karas affirmed Judge Drain’s finding that the Wells Fargo Witness’
testimony showed “the general indorsement and assignment practices of Wells Fargo
endorsement and assignment teams, … showed ‘a general willingness and practice
on Wells Fargo’s part to create documentary evidence, after the fact, when enforcing
its claims. Id. *14. Judge Karas also noted:
the fact that Wells Fargo had assignment and indorsement teams that,
as the bankruptcy court found, would act to improve the record with
respect to various notes and deeds of trust in Wells Fargo’s possession,
makes the fact that the indorsement at issue here was added after-the-
fact to improve Wells Fargo’s standing more probable “than it would
be without the evidence. Id.
Judge Karas also wrote: "In the wake of the recent foreclosure crisis, and the
dubiousness of the common robo-signing practices of various banks and other
foreclosing entities… it may be time to reconsider whether "forged or unauthorized
signatures" remain "very uncommon." Id. at fn.
The Chief Judge of the Second DCA recently issued a concurring opinion
noting, “[i]t appears that many foreclosure judgments are entered based on dubious
proof by the banks due to an understandable lack of sympathy for defendants who
are years behind on payments…” and that there is need to “alleviate the temptation
to excuse strict compliance with the laws of evidence.” Shaffer v. Deutsche Bank
Nat. Trust., 2017 WL 1400592 at *8 (Fla. 2nd DCA) filed April 19, 2017.
Similarly, on June 10, 2017, the Honorable Judge William W. Haury, Jr. wrote
in a foreclosure action:
It is ironic that our evidentiary rules are being relaxed in the one area
of practice that our Supreme Court has been most concerned with. This
is one of the few instances in the history of Florida jurisprudence where
the Florida Supreme Court has deemed it necessary to subject an entire
industry to special rule due to the industry's documented illegal
behavior. The amendment of Fla. R. Civ. P. 1.110 (b) was a direct result
of the robosigning scandal… Notwithstanding this, some of our courts
appear to be conforming to the business practices of this industry rather
than requiring the business practices to conform to the law. Wells
Fargo Bank N.A., as Trustee for the Structured Asset Mortgage
Investments II Inc. Bear Stearns Mortgage Funding Trust 2007-AR1,
Mortgage Pass Through Certificates Series 2007-AR1. v. Jerry
Warren, Broward County Case No. 13-010112(11), fn. 4. See attached
as Appendix G.
The Fourth DCA certified a question to the Florida Supreme Court of great
public importance finding “many, many mortgage foreclosures appear tainted with
suspect documents…[which] may dramatically affect the mortgage foreclosure
crisis in State.” Pino v. Bank of New York, Mellon, 57 So. 3d 950, 954 (Fla. 4th
DCA 2011). The majority opinion in Pino held that:
“‘fraud on the court’ occurs where it can be demonstrated, clearly and

convincingly, that a party has sentiently set in motion some
unconscionable scheme calculated to interfere with the judicial system's
ability impartially to adjudicate a matter by improperly influencing the
trier or unfairly hampering the presentation of the opposing party's
claim or defense.”
Only the honorable former Chief Judge Polen dissented in a powerful opinion
supporting sanctions against BONYM’s bad faith conduct that argued:
Decision-making in our courts depends on genuine, reliable evidence.

The system cannot tolerate even an attempted use of fraudulent
documents and false evidence in our courts. The judicial branch long
ago recognized its responsibility to deal with, and punish, the attempted
use of false and fraudulent evidence. When such an attempt has been
colorably raised by a party, courts must be most vigilant to address the
issue and pursue it to a resolution. Pino v. Bank of New York, Mellon,
57 So. 3d 950, 959 (Fla. 4th DCA 2011).
Respectfully, there is a need to vindicate the integrity of the judiciary. Two
appellate courts have noted the dubious proof presented to Florida courts by financial
institutions that understand there is no sympathy for delinquent borrowers. The
integrity of due process should have no sympathy for dubious evidence in equitable
actions. This Honorable Court must vindicate the integrity of the judiciary when
dubious proof is presented in this equitable action.
In 2005, when this foreclosure crisis was just getting started, the Honorable
Judge Jon Gordon struck that first wave of foreclosures as sham pleadings because
they all falsely claimed MERS owns and holds the notes and mortgages. See Order
attached as Appendix H. Judge Gordon cited the Florida Supreme Court:
“Busy judges managing overloaded motion calendars often depend on

the attorneys appearing before them to provide them with accurate
information about the issues involved, the facts relevant to those issues,
and the law applicable to those facts. The heart of all legal ethics is in
the lawyer's duty of candor to a tribunal. It is an exacting duty with an
imposing burden. Unlike many provisions of the disciplinary rules,
which rely on the court or an opposing lawyer for their invocation, the
duty of candor depends on self-regulation; every lawyer must
spontaneously disclose contrary authority to a tribunal…. We do not
accept the notion that outcomes should depend on who is the most
powerful, most eloquent, best dressed, most devious and most
persistent with the last word-or, for that matter, who is able to misdirect
a judge. American civil justice is so designed that established rules of
law will be applied and enforced to insure that justice be rightly done.
Such a system is surely defective, however, if it is acceptable for
lawyers to “suggest” a trial judge into applying a “rule” or a
“discretion” that they know-or should know-is contrary to existing law.
Even if it hurts the strategy and tactics of a party's counsel, even if it
prepares the way for an adverse ruling, even though the adversary has
himself failed to cite the correct law, the lawyer is required to disclose
law favoring his adversary when the court is obviously under an
erroneous impression as to the law's requirements.” Boca Burger, Inc.
v. Forum, 912 So. 2d 561, 573 (Fla. 2005), as revised on denial of reh'g
(Sept. 29, 2005).
In 2006, the New York Times published a report by Baker Hostetler to Fannie
Mae which investigated the “Florida MERS embarrassment” and concluded that
Judge Gordon was correct: Florida attorneys had routinely presented false testimony,
false evidence, and misleading legal arguments to Florida Courts. Fannie Mae's
lawyers warned: "We conclude that foreclosure attorneys in Florida are routinely
filing false pleadings … The practice could be occurring elsewhere. It is axiomatic
that the practice is improper and should be stopped." See Baker Hostetler Report, p.
35, attached as Appendix I.
On October 31, 2007, the Honorable Christopher A. Boyko, U.S. District
Court Judge for the Eastern Division of the Northern District of Ohio dismissed over
a dozen foreclosure cases with false mortgage assignments from his court in one
opinion. In re Foreclosure Cases, No. 07CV2532, 2007 WL 3232430 (N.D. Ohio
Oct. 31, 2007). See attached as Appendix J. Judge Boyko rejected banks that
backlog his docket with robo-signed, incompetent evidence, writing in footnote 3:
“Plaintiff’s, ‘Judge, you just don’t understand how things work,’

argument reveals a condescending mindset and quasi-monopolistic
system where financial institutions have traditionally controlled, and
still control, the foreclosure process…. There is no doubt every decision
made by a financial institution in the foreclosure process is driven by
money….”Id. at 5-6, fn. 3.
Almost ten years later, on March 23, 2017, the Honorable U. S. Bankruptcy
Judge Christopher M. Klein of the Eastern District of California sanctioned BOA
$45 Billion for foreclosure misconduct involving BOA’s Senior Management.
Sundquist v. Bank of America, --B.R.--, 2017 WL 1102964 *46 (U.S. Bkrptcy, E.D.
Cal. issued March 23, 2017). See attached as Appendix K.
The Court directed the $45 Million to benefit the public good by being
donated to five (5) California Law Schools with active consumer protection law
programs. This ensured the borrower did not receive an undue windfall. The
opinion “tells a story that smacks of cynical disregard for the law.” Id. at *47. The
Court noted:
“The high degree of reprehensibility, coupled with the significant

involvement by the office of the Chief Executive Officer, calls for of
an amount sufficient to have a deterrent effect on Bank of America and
not be laughed off in the boardroom as petty cash or “chump change….
It happens that Bank of America has a long rap sheet of fines and
penalties in cases relating to its mortgage business. In March 2012,
Bank of America agreed to pay $11.82 billion to settle litigation
prosecuted by federal and state regulators regarding its foreclosure and
mortgage servicing practices. In June 2013, Bank of America agreed to
pay $100 million to settle litigation regarding mortgage loan origination
issues. In December 2013, Bank of America agreed to pay $131.8
million to settle litigation with the Securities Exchange Commission
regarding the structuring and sale of mortgage securities to institutional
investors. In March 2014, Bank of America was fined $9.5 billion by
the Federal Housing Finance Agency for defrauding Fannie Mae and
Freddie Mac regarding mortgage-backed securities. In an environment
in which Bank of America has been settling, i.e. terminating exposure
to higher sums, for billions and hundreds of millions of dollars, a few
million dollars awarded as § 362(k)(1) punitive damages award in a real
case involving real people, in which the human element of the
consequences of Bank of America's behavior comes to the fore for the
first time is appropriate and proportional.” *39-40.
This federal judge questioned “why should Bank of America be permitted to
evade the appropriate measure of punitive damages for its conduct? Not being
brought to book for bad behavior offensive to societal norms merely incentivizes
future bad behavior.” This federal judge noted BOA’s “attitude of impunity” citing
a failed governmental regulatory system.
In describing the Independent Foreclosure Review ordered by Office of the
Comptroller of the Currency (“the OCC”) which regulates Bank of America, Wells
Fargo and Chase, Judge Klein noted “that turned out to be a chimera.” Id. at *43.
Even investigations by the Consumer Financial Protection Bureau (“The CFPB”),
were “thwarted” with a “bald-faced lie” and a refusal to turn over documents.
It appears the big banks have all engaged in widespread fraud upon the court,
supported by Senior Executives who suborned perjury and refused to turn over court
ordered documents to cover up fraud upon the OCC, the HUD/OIG, the DOJ, the
CFPB, the Federal Courts, the State Courts, the trial court, and this Honorable Court.
This Court has held: “when analyzing a party's intent to defraud the trial court,
the trial court may consider all the circumstances surrounding the alleged violations,
including a party's misconduct in related cases…. The ultimate question remains
whether the party's misconduct was intended to defraud the trial court considering
the sanctions.” Empire World Towers, LLC v. CDR Creances, S.A.S., 89 So. 3d
1034, 1042 (Fla. 3rd DCA 2012).
Long before the foreclosure crisis wreaked havoc on Florida’s Courts, this
Court addressed a nearly identical situation where an Appellant asserted the
Appellee procured the final judgment by manufactured, fraudulent evidence. Pelekis
v. Florida Keys Boys Club, 302 So.2d 447 (Fla. 3rd DCA 1974).
In Pelekis, the Third DCA noted that fabrication of evidence allegations are “a
serious charge which requires a complete explanation of the circumstances of the
alleged wrong and, therefore, merits a full opportunity to present all the available
facts to the court.” Id. at 448.
This Honorable Court has held it is error to summarily deny a Rule 1.540(b)
Motion that specifically alleges fraud that affects the outcome of the case with
particularity. U.S. Bank Nat. Ass'n v. Paiz, 68 So.3d 940, 944 (Fla. 3rd DCA, 2011).
In Paiz, this Honorable Court held:
"To entitle a movant to an evidentiary hearing on a motion for relief

from judgment, a rule 1. 540(b)(3) motion must specify the fraud with
particularity and explain why the fraud, if it exists, would entitle the
movant to have the judgment set aside. Flemenbaum v. Flemenbaum,
636 So.2d 579, 580 (Fla. 4th DCA 1994)…. The matter alleged must
affect the outcome of the case and not merely be "de minimis." Id. Thus,
to obtain a hearing on a rule 1. 540(b)(3) motion, the law requires a
movant "to demonstrate a prima facie case of fraud, not just nibble at
the edges of the concept." Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla.
4th DCA 2003). Id.
When a motion raises a colorable allegation of fraud in its motion for relief
from judgment, the trial court is required to permit discovery and provide a formal
evidentiary hearing on the motion. Teasa Wolff a/k/a Teasa Wolfe v. Star Realty
Trust No. 12549, Corp., 80 So.3d 345, 3D10-1508, slip op. at 4, 36 Fla. L. Weekly
D2475a (Fla. 3rd DCA 2011). To be entitled to an evidentiary hearing the motion
must (i) "specify with particularity," and (ii) "explain why the fraud, if it exists,
would entitle the movant to have the final judgment set aside." Id.
Here, there is a clear, specific and detailed explanation that shows the
judgment is based on a dead bank robostamped endorsement which is unauthorized
under Fla. Stat. §673.3081, backdated by perjured testimony, and would entitle
Appellant to set aside the judgment. The PCA herein calls into question whether
this Court is fairly adjudicating the issues presented, especially in light of the
seriousness of the allegations raised and the recent Daily Business Review articles
which report an institutional bias that favors and protects large financial institutions
engaged in misconduct rather than holds them accountable to the law.
II. There is a Fundamental Breakdown in Due Process to Resolve

Allegations of Fraud on the Court by a PCA and Block Further
Review
The evidence shows these parties sentiently set in motion an unconscionable
scheme to defraud the courts since this foreclosure crisis began in 2005, and has
continued unabated, even after the $25 Billion National Mortgage Settlement (“the
$25 Billion NMS) to this appeal. The issuance of a PCA to resolve this case is a
departure from the essential elements of law.
A District Court may refuse to issue a written opinion for any reason or for no
reason at all. However, it is “fundamental black letter law” that a District Court
should write an opinion unless “the points of law raised are so well settled that a
further writing would serve no useful purpose.” Elliot v. Elliot, 648 So. 2d 137, 138
(Fla. 4th DCA 1994).
Arthur J. England Jr., Former Chief Justice of the Florida Supreme Court
wrote: “[W]e expect judges, like no other public official, to justify their decisions
with reason.” Arthur J. England Jr., Asking For a Written Opinion From a Court
That Has Chosen Not To Write One, 78-Mar Fla. B. J. 10, 14 (March 2004). Before
his passing, Justice England concluded this amendment to Rule 9.330 is
conceptually flawed and should be repealed, recognizing a procedural infirmity in
that “asking a District Court to provide an opinion that will expose their rationale to
Supreme Court review puts expressly in the hands of District Court judges the
discretion to allow or not allow review.” Id. at 15.
Judge Cope argues this requirement is unsound as its permits review by the
United States Supreme Court while depriving the Florida Supreme Court jurisdiction
to review the same matter. Cope at 80. Judge Cope also notes the practice of issuing
a PCA is entirely unregulated and inconsistently applied throughout the District
Courts. Id. Moreover, Judge Cope observes that PCAs are routinely issued
improperly to resolve cases that present debatable legal issues as evidenced by the
dissenting and concurring opinions that often follow. Id.
The Daily Business Review wrote an article celebrating the integrity of a
Fourth DCA appellate panel that granted rehearing after a PCA and reversed.2 See,
U.S. Bank v. Sharlene Lewis, 2016 WL 899912 (Fla. 4th DCA 2016). The primary
factor that compelled the panel to reconsider and reverse their ruling was each
individual judge’s personal ethos. Each panel judge paused, took stock of their
decision, and decided whether their ruling followed established Florida law.
Since the Magna Carta, the Due Process Clause has limited the powers of all
branches of government, including the judiciary. Truax v. Corrigan, 257, U.S.
312,333, 42 S.Ct. 124, 129 (1921). “The vague contours of the Due Process Clause
do not leave judges at large.” Rochin v. People of California, 342 U.S. 165, 170, 72
S.Ct. 205, 209 (1952). Judges have long been required to publicly give a reasoned
opinion from the bench in support of their judgment. Id. at fn. 4.
Respectfully, this result which affirms without comment, a final judgment
granting the equitable relief of foreclosure in the face of unclean hands, appears
arbitrary, capricious, and in conflict with fundamental principles protecting private
2
http://www.dailybusinessreview.com/id=1202752251066/Foreclosure-Shifts-
From-Summary-Denial-to-Reversal-With-Opinion?slreturn=20160320115614.
rights. American Ry. Express Co. v. Commonwealth of Kentucky, 273 U.S. 269, 273,
47 S.Ct. 353, 355 (1927). In the context of substantive due process, the reason given
to support state action, which deprives property may not be so inadequate that it may
be characterized as arbitrary. Jeffries v. Turkey Run Consolidated School District,
492 F.2d 1, 4 (7th Cir. 1974). State action is “arbitrary” when taken without reason
or for merely pre-textual reasons. Decarion v. Monroe County, 853 F. Supp 1415,
1421 (S.D. Fla. 1994).
The "arbitrary and capricious" standard requires a State examine the relevant
data and articulate a satisfactory explanation for its action. Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm, 463 U.S. 29, 43, 103 S.Ct. 2856, 2867 (1983) citing
Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245-246
(1962). As the Florida Supreme Court noted, "one of the best procedural protections
against arbitrary exercise of discretionary power lies in the requirement of findings
and reasons that appear to reviewing judges to be rational." Roberson v. Florida
Parole and Probation Commission, 444 So. 2d 917, 921 (Fla. 1983).
Any appellate court concerned about the public’s perception of its ability to
render meaningful justice should correct a lower court ruling that relies upon a
fraudulent piece of evidence prepared by the party in anticipation of litigation. This
appeal raises unsettled questions regarding the integrity of the foreclosure process
itself. Particularly, whether Appellee violated the $25 Billion NMS in this case by
the continued use of a materially false mortgage assignment and surrogate signed
endorsement created after the fact on behalf of third parties that did not legally exist
to establish standing.
As this Honorable Court’s decision does not speak to any of the issues raised
below and on appeal, there is a due process violation. It would be fundamentally
improper to issue a PCA on unsettled issues to avoid further appellate review or
reach a result contrary to Florida law.
The Daily Business Review has published a series of front page articles over
the past few months celebrating judges who granted Appellant’s counsel’s motions
for contempt and sanctions against large financial institutions for their relentless
foreclosure abuses which shockingly still continue to this day.3
The Daily Business Review published an article noting this Honorable Court’s
silence on standing in foreclosure cases.4 On December 1, 2013, the Daily Business
Review published another article accusing this Honorable Court of “targeting”
Appellant’s counsel.5 Certainly, the public’s perception of the judiciary’s ability to
3
https://www.law.com/dailybusinessreview/sites/dailybusinessreview/2018/01/25/miami-judge-
sanctions-law-firm-treasury-secretary-mnuchins-former-bank-for-frivolous-foreclosure/
https://www.law.com/dailybusinessreview/sites/dailybusinessreview/2017/12/08/loan-servicers-
attorneys-face-criminal-contempt-arraignment-in-miami/
4
http://www.dailybusinessreview.com/id=1202752360518/Defense-Questions-Courts-Silence-
on-Standing-in-Foreclosure-Cases#ixzz4362cxF6z
5
http://www.jakelegal.com/files/daily_business_review__justice_watch_foreclosure_attorneys_ta
rgeted_in_3rd_dca_ruling.pdf
render meaningful justice would be denigrated if Federal Judges and other appellate
courts addressed these issues when this Honorable Court chose to remain silent.
On Friday, February 9, 2018, the Daily Business Review published an article
entitled, Miami Court Wipes Ruling That Found HSBC Forged Mortgage
Documents by Samantha Joseph.6 This Court “wiped” the Honorable Judge Beatrice
Butchko’s ruling that Ocwen and HSBC had unclean hands because they relied on
false evidence, false testimony, violated a discovery order, and lied about violating
that discovery order, which she found reasonable people would condemn.
On Monday, February 12, 2018, the Daily Business Review published an
article entitled, Can He Say That? Frustrated Attorney Asks ‘what’s wrong with the
Third DCA, also by Samantha Joseph,7 which stated “there is no question that the
Third District is pro-business and couldn’t care less about homeowners.”
The article further charged that the Third DCA “abuses per curiam
affirmances, or PCAs, to avoid explaining their rulings on lender standing,… [and]
misuses the tool to strategically sidestep writing opinions that could provide grounds
for rehearing. Instead, they say it uses the decisions to wipe out options for further
review and avoid conflicts with other district courts.”
6
https://www.law.com/dailybusinessreview/sites/dailybusinessreview/2018/02/08/miami-court-
wipes-ruling-that-found-hsbc-forged-mortgage-documents/
7
https://www.law.com/dailybusinessreview/sites/dailybusinessreview/2018/02/09/can-he-say-
that-frustrated-attorney-asks-whats-wrong-with-the-third-dca/
The article laid out statistical, empirical evidence that this Honorable Court
reversed on standing in favor of the banks 87% of the time, while over the same time
period, the 1st, 2nd, 4th and 5th DCA's all reversed on standing in favor of the
borrowers 73%-84% of the time.
This Court has issued a PCA in multiple appeals filed by Appellant’s counsel
where the briefs argued unclean hands, unconstitutionality of the foreclosure
process, inadmissible hearsay, and failure to prove the note was endorsed at the time
of filing. This Court repeatedly then denied similar motions asking for a written
opinion, for rehearing and rehearing en banc without comment.
The Daily Business Review article reports that this Court has misused the
PCA and authored opinions calculated to reach a result favorable for banks while
avoiding conflict with other district courts. There is no good explanation for why
this Court has ruled for banks on standing 87% of the time when the other DCAs are
all dealing with the same pleadings by the same foreclosure firms. There was a robo-
signing scandal. There is evidence of unclean hands. The PCA is a violation of due
process as it takes the homes from borrowers and gives them to banks without any
findings of facts or conclusions of law in an area of law that remains unsettled.
III. Rehearing En Banc is Necessary to Preserve the Public’s

Perception of the Court’s Ability to Render Meaningful Justice
The Honorable Judge Sheppard instructs that a case is of exceptional
importance to be considered en banc if the result “may reasonably and negatively
influence the public's perception of the judiciary's ability to render meaningful
justice.” University of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3rd DCA 2006).
Any institutional bias that unfairly favors the wealthy and powerful over the
poor is unconstitutional, unethical, and unacceptable to those entrusted to guard our
democracy at the level of an appellate court judge. Sanctions serve a societal need
as a specific and general deterrent to greater misconduct. When greater misconduct
occurs even after those sanctions, even greater sanctions must be imposed.
Here, Appellee “has mindfully undermined the integrity of the courts by
creating a mockery of the principles of justice through [its] deceitful misconduct.
Such underhanded tactics in full derogation of our legal processes should be met
with swift measures. Total expulsion from the category of persons who may avail
themselves of the benefits of our court system should not be an afterthought, but
should instead be the direct result of such egregious misconduct. Cabrerizo v.
Fortune Int'l Realty, 760 So. 2d 228, 230 (Fla. 3rd DCA 2000)
The United States Supreme Court has recognized the basic constitutional
precept of a neutral, detached judiciary:
The Due Process Clause entitles a person to an impartial and

disinterested tribunal in both civil and criminal cases. This requirement
of neutrality in adjudicative proceedings safeguards the two central
concerns of procedural due process, the prevention of unjustified or
mistaken deprivations and the promotion of participation and dialogue
by affected individuals in the decision making process. See Carey v.
Piphus, 435 U.S. 247, 259-262, 266-267, 98 S.Ct. 1042, 1043, 1050-
1052, 1053, 1054, 55 L.Ed.2d 252, (1978). It preserves both the
appearance and reality of fairness, “generating the feeling, so important
to a popular government, that justice has been done,” Joint Anti-Fascist
Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed.
817 (1951)(Frankfurter, J., concurring), by ensuring that no person will
be deprived of his interests in the absence of a proceeding in which he
may present his case with assurance that the arbiter is not predisposed
to find against him. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).
The Florida Supreme Court has made it clear a judge should disqualify
themselves, even if not subjectively unfair, because the integrity of the judicial
system requires the objective appearance of neutrality:
This Court is committed to the doctrine that every litigant is entitled to

nothing less than the cold neutrality of an impartial judge. It is the duty
of Courts to scrupulously guard this right and to refrain from attempting
to exercise jurisdiction in any matter where his qualification to do so is
seriously brought in question. The exercise of any other policy tends to
discredit the judiciary and shadow the administration of justice.
It is not enough for a judge to assert that he is free from prejudice. His
mien and the reflex from his court room speak louder than he can
declaim on this point. If he fails through these avenues to reflect justice
and square dealing, his usefulness is destroyed. The attitude of the
judge and the atmosphere of the court room should indeed be such that
no matter what charge is lodged against a litigant or what cause he is
called on to litigate, he can approach the bar with every assurance that
he is in a forum where the judicial ermine is everything that it typifies,
purity and justice. The guaranty of a fair and impartial trial can mean
nothing less than this. Crosby v. State, 97 So. 2d 181, 184 (Fla. 1957).
Respectfully, the Code of Judicial Conduct, Canon 3 E(1) states: “A judge shall
disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned...”
There is objectively reason to question whether this Honorable Court has an
institutional bias against homeowners, and Appellant’s counsel, for zealously
advocating on behalf of homeowners, as evidenced by the Daily Business Review
articles and Appellant’s counsel’s body of appellate work.
Appellant’s counsel has taken approximately 36 foreclosure appeals before
this Honorable Court since 2010. On every appeal taken of a final judgment in favor
of the bank, the Court issued a PCA and repeatedly denied a motion for written
opinion, rehearing, or for rehearing en banc, on these issues. At some point, this
Honorable Court must stop silently tolerating misconduct by the largest financial
institutions in the world and hold them accountable to the law.
Most recently, Judge Christopher Klein issued an order refusing to dismiss
and vitiate a final judgment setting forth legal ground to support his punitive
damages award finding:
“this motion to dismiss began as a hostage standoff. Bank of America,

with a gun to the Sundquists' heads, said it would pay them several
million dollars more than the $6,074,581.50 awarded to them, but only
if this court first dismisses the adversary proceeding so as to vitiate the
opinion in Sundquist v. Bank of America (In re Sundquist), 566 B.R.
563 (Bankr. E.D. Cal. 2017). There being no legal obstacle to Bank of
America paying the Sundquists without any judicial action, this was a
naked effort to coerce this court to erase the record. No chance. No
dice.” See attached as Appendix L.
Judge Klein refused to vitiate his order, ruling “to name and to shame Bank
of America on the public record in an opinion that stays on the books serves a
valuable purpose casting sunlight on practices that affect ordinary consumers. Other
persons dealing with Bank of America will be able to gauge their experiences against
what has been revealed in this case.”
Any appellate court concerned about the public’s perception of its ability to
render meaningful justice should make findings of fact and conclusions of law when
the Appellant sets forth reasonable grounds of fraud of the court. There is a growing
chorus of respected jurists who refuse to tolerate mortgage servicers who dare
present false evidence, false testimony or violate court orders that would expose their
unclean hands in foreclosure actions, even after the National Mortgage Settlement.
Each judge has their own independent obligation to uphold the integrity of the
court and jealously guard the rights of all litigants, especially when there is a great
disparity between the parties. Each judge takes an oath to “administer justice
without respect to persons, and do equal right to the poor and to the rich, and …
faithfully and impartially discharge and perform all the duties incumbent … under
the Constitution and laws of the United States. So help me God.” 28 U.S.C. §453
(1948). There is no justification for any judge to favor the rich over the poor.
IV. This Court Should Grant Relief to Prevent the Public from
Perceiving an Institutional Bias By Refusing to Address these
Misconduct Issues
This Honorable Court should grant rehearing or write an opinion that would
permit Appellant to seek further review by the Florida Supreme Court. Under
Article V of the Florida Constitution, as amended in 1980, the Florida Supreme
Court lacks jurisdiction to review a District Court decision that issues a PCA without
a written opinion. There are no standards in Florida that require a District Court to
write an opinion or certify a matter to be of great public importance. Appellant’s due
process rights are violated if this Honorable Court denies Rehearing En Banc or
refuses to issue a written opinion.
There is no question any Judge or law-abiding citizen could reasonably insist
that homeowners pay their mortgage or lose their homes. Unlike the law-abiding
citizen, this Honorable Court has a constitutional obligation to the integrity of the
process. Appellant respectfully submits the per curiam affirmance of the trial
court’s final judgment of foreclosure is arbitrary, capricious, and a denial of
Appellant’s constitutional right to due process protected by the Florida and United
States Constitutions. This Honorable Court’s ruling conflicts with decisions of the
Florida Supreme Court, Florida Statutes, this Honorable Court, and other District
Courts of Appeal, that all require a party have the opportunity to plead and prove
defenses after reasonable discovery before a fair and impartial tribunal.
The Honorable Retired Judge Alan Schwartz once wrote, “the law is the law.
Notwithstanding the distasteful consequences of applying it in this case, it must be
served.” Spencer v. EMC Mortg. Corp., 97 So.3d 257, 262 (Fla. 3rd DCA 2012).
The last time Appellant’s counsel cited that quote to this Honorable Court, it resulted
in Appellant’s Counsel responding to an Order to Show Cause Why He Should Not
Be Sanctioned. See attached as Appendix M.
If a tree falls in the woods and no one is around to hear it, does it make a
sound? If an industry with trillions in assets, already punished with billions in
sanctions, continues an unconscionable scheme calculated to interfere with the
Court’s ability to properly adjudicate foreclosure cases, and the Appellate Court says
nothing, is it still a fraud on the court? Why not name and shame large financial
institutions that engage in misconduct in equitable proceedings?
Why not impose a more severe sanction than $25 Billion and direct the money
to a judicial integrity fund? The fund could provide resources to eradicate
homelessness, drug addiction, mental health issues, and sea level rise. The Fund
could also support early childhood education programs, higher education, and
address a myriad of other problems Miami has faced since this industry destroyed
the economy, leaving Miami an epicenter of both the housing crisis and the
robosigning scandal that followed. Why not issue orders to show cause and
prosecute those senior executives responsible for setting this unconscionable scheme
in motion? The public would herald judges responsible for such a program as heroes.
There is no reason why a Bank is allowed to fabricate evidence, suborn
perjury, and violate court orders to avoid exposing their egregious misconduct with
impunity. The entire industry engaged in a national wide fraud on the Court. The
bank agreed in the $25 Billion National Mortgage Settlement to only use competent
evidence in foreclosures going forward. Before the ink dried, the Bank started this
dead bank robostamped endorsement process and then suborned perjury to cover it
up. It was not just one bank, it was an entire industry. How is that ok? Does Mr.
Alexander deserve a thoughtful response to these questions before losing his home?
Counsel for Appellant expresses a belief, based on reasoned and studied
professional judgment, that the panel decision is contrary to the decisions of this
Honorable Court and would negatively impact the public’s perception of this
Honorable Court’s ability to render meaningful justice. A consideration by the full
court is necessary to maintain uniformity of decisions in this court and protect the
integrity of the public’s perception. These points of law raised are so well settled in
Florida. The law favors the Appellant, not the Appellee.
Here, the Court should join those respected jurists who are sounding the alarm
that there is a problem with the evidence presented in foreclosures, again. It may be
wildly unpopular to reach a decision that favors a homeowner and undermines
Plaintiffs who are seeking equitable relief without complying with Florida law. If
the Court is convinced the law requires that unpopular result, that is the result the
Court must reach. But seriously, who would find this result unpopular except those
responsible for this misconduct in the first place?
The Florida Supreme Court has held “a large word like justice… compels an
appellate court to concern itself not alone with a particular result but also with the
very integrity of the judicial process.” Special v. W. Boca Med. Ctr., 160 So. 3d
1251, 1257 (Fla. 2014). The latin phrase “Sat Sito Si Recte” found on the seal of the
Florida Supreme Court Seal and the Florida District Courts of Appeal means, “soon
enough if done correctly.” Respectfully, it is not done correctly to issue a PCA after
cancelling oral argument where a trial court disposed of a colorable claim of fraud
on the court without taking evidence.
WHEREFORE, Appellants request this Honorable Court issue a written
opinion, grant rehearing, or grant rehearing En Banc to reverse with instructions to
permit Appellant to take discovery and present evidence at an evidentiary hearing
on the Rule 1.540(b) Motion, or any relief deemed mete and just.
JACOBS KEELEY, PLLC

TEL (305) 358-7991
FAX (305) 358-7992

BRUCE JACOBS
COURT E. KEELEY
AMIDA U. FREY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was emailed to

jonathan.blackmore@phelanhallinan.com fl.service@phelanhallinan.com; Jonathan
Lee Blackmore, Esq., Phelan Hallinan, PLC, 2727 W Cypress Creek Rd, Ft
Lauderdale, FL 33309-1721 this 22nd day of February, 2018.
/s/ Bruce Jacobs

Bruce Jacobs
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
MARCH 21, 2018
DANIEL H. ALEXANDER and CASE NO.: 3D16-2228

JACQUELINE P. ALEXANDER,
Appellant(s)/Petitioner(s),
vs. L.T. NO.: 14-19290
BAYVIEW LOAN SERVICING, LLC,
Appellee(s)/Respondent(s),
Upon consideration, appellants’ motion for rehearing and request for a
written opinion is hereby denied. SUAREZ, LAGOA and SALTER, JJ., concur.
Appellants’ motion for rehearing en banc is denied.
cc: Bruce Jacobs Court E. Keeley Amida Umesh Frey

Jonathan L. Blackmore John D. Cusick Anna C. Morales
la

FL Supreme Court Filing With 2018 10 16

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FL Supreme Court Filing With 2018 10 16

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Filing # 71009526 E-Filed 04/20/2018 11:29:00 AM

IN THE SUPREME COURT OF FLORIDA

THIRD DCA CASE NO.: 3D16-2228

LOWER CASE NO.: 14-019290-CA

DANIEL H. ALEXANDER AND JACQUELINE P. ALEXANDER

BAYVIEW LOAN SERVICING, LLC

APPENDIX TO PETITION FOR WRIT OF MANDAMUS

JACOBS KEELEY, PLLC

BY: /S/ BRUCE JACOBS

Appendix A Motion, Order, and Opinion in Daniel Alexander and Jacqueline

Appendix B Daily Business Review Article: Can He Say That? Frustrated

Appendix C Motion for Rehearing, for Rehearing En Banc, and requested a

JACOBS KEELEY, PLLC

BY: /S/ BRUCE JACOBS

/S/ BRUCE JACOBS

Opinion filed January 24, 2018.

Daniel H. Alexander and Jacqueline P. Alexander,

Bayview Loan Servicing, LLC,

An Appeal from the Circuit Court for Miami-Dade County, John W.

Before SUAREZ, LAGOA, and SALTER, JJ.

Miami, FL: This Unbelievable, Tiny Company Is

Can He Say That? Frustrated Attorney Asks,

& (http://www.almreprints.com) Last Name

One unlikely defender is outspoken foreclosure defense attorney Thomas Ice

The Third DCA did not respond to inquiries for comment.

“The standard to be applied is whether the attorney had an objectively reasonable

! SHARE ON FACEBOOK # SHARE ON TWITTER

DANIEL H. ALEXANDER AND CASE No. 3D16-2228

BAYVIEW LOAN SERVICING, LLC,

APPELLANTS’ MOTION FOR REHEARING, FOR REHEARING

Daniel H. Alexander and Jacqueline P. Alexander, (“Appellants”), pursuant

I. There is a Colorable Claim of Fraud to Warrant a Written Opinion

There is a clear right to discovery and an evidentiary hearing to establish that

endorsement found on the original promissory note in this case, is found on

thousands of notes originated by WAMU and Chase.

Bennett, 4 Fla. 283, 347 (1852)(superceded by statute on other grounds)(“the

debt is considered to be without meaning or use….”).

a final judgment in favor of a homeowner defended by Appellant’s counsel finding

robostamped endorsement which barred the equitable relief of foreclosure in Wells

010759-XXXX-MB. See attached as Appendix A.

unconscionable scheme to rely on a dead bank robostamped Cynthia Riley

endorsement and false mortgage assignment to establish standing.

essential that act be a crime; it is enough that it be condemned by honest and

reasonable men.” Roberts v. Roberts, 84 So.2d 717 (Fla. 1956)(emphasis added).

Judge Harrison explained “even if Plaintiff had standing to foreclose (a

honest men would condemn.”

policy of the law in withholding relief from a complainant because of ‘unclean

Supreme Court Justice Black wrote:

“[T]ampering with the administration of justice in the manner

evidence. Appellant should be allowed to present evidence and be heard on these

allegations of misconduct. Respectfully, it is a departure from the essential elements

of law to resolve these allegations of misconduct by a PCA.

Appellant’s colorable claim is that senior executives of Chase suborned

perjury to backdate dead bank robostamped endorsements to claim it was affixed

in earnest after the Florida Attorney General’s PowerPoint presentation entitled

“Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases” detailed

widespread fraud on the court involving robo-signed mortgage assignments. See

the court’s ability to fairly adjudicate foreclosures caused a tremendous strain on

judicial resources of the Florida Courts, and undoubtedly, resulted in homeowners

that continued to lose their homes based on false, incompetent evidence.

violated a court order to produce discovery. See attached as Appendix D. Appellee

unclean hands, and an ultimate defense to foreclosure.

is whether reasonable minds could differ as to the propriety of imposing this

(Fla. 4th DCA 2008).